Podcast: Elder abuse law reform proposals on aged care



Marie-Claire Muir (MM): Hi, my name is Marie-Claire Muir. I’m the Communications Manager at the Australian Law Reform Commission. I’m here today with Vanessa Viaggio, who is a Principal Legal Officer at the ALRC and she’s been working on the Elder Abuse Inquiry. She’s been focussing on a few areas, and one of those is elder abuse in aged care.

So, Vanessa, what do we know about abuse of people receiving aged care?

Vanessa Viaggio (VV): Well, while we do have some data – specifically data that is captured by the compulsory reporting scheme that currently applies to residential aged care, as well as complaints data from the Aged Care Complaints Commissioner – there is no comprehensive data on the prevalence of abuse of people receiving aged care. But what we have heard from stakeholders are reports of a number of instances of abuse of older people receiving aged care, including abuse perpetrated by paid carers, by other residents of care homes, sometimes by family members or appointed decision makers. The types of abuse they were telling us about included financial, physical, sexual, and emotional abuse, neglect, and we also heard about restrictions on movement and visitation.

MM: And what do we know about safeguarding or providing better protection to older people receiving care?

VV: A key component of safeguarding people receiving aged care requires putting in place measures that allow incidents of abuse to come to light, while also requiring that the response to those incidents is appropriate. So those two key themes were really strong – transparency and accountability. They were highlighted by stakeholders as areas for improvement in aged care.

MM: OK. So in the Discussion Paper we’ve just released we have proposals for reform. Can you tell us what is being proposed here?

Yeah, sure. One of the things we are proposing is the introduction of what we call reportable incident scheme. It’s modelled on a similar scheme that is operating in New South Wales that applies to people with disability that are living in group accommodation. And what we’re proposing under the scheme is that aged care providers would be required to report certain types of abusive conduct – and we refer to them as ‘reportable incidents’ – to the Aged Care Complaints Commissioner. We are suggesting that the Commissioner’s office take on an oversight and monitoring role of the aged care provider’s response to the incidents of abuse. We think that a scheme like this would complement existing functions that the Aged Care Commissioner has, both around complaint response and also education, and in doing so enhance safeguards to care recipients by improving the response of the aged care provider that is there day to day providing the person with that care.

MM: OK. And are you proposing any further safeguards in the aged care space?

VV: We are. There are a few other things we’re proposing. So there’s sort of a suite of reforms that we’re suggesting might enhance protections here.  First of all, we are considering enhanced employment screening for people working in aged care. What we were told by stakeholders – a lot of people talked about working with children checks – so we’re looking a proposals along those. We know that currently people working in aged care are subject to police checks, but those checks rely on someone having had contact with the criminal justice system and we also know that, because of the high thresholds that apply in that area, not all incidents of what we would say are concerning workplace conduct will be identified in a police check. So we are proposing that any findings made against a worker that would arise from the reportable incident scheme I mentioned a moment ago, as well as things like other disciplinary findings, would be ‘flagged’ when a person applies to work in aged care.

Another thing proposed in the Discussion Paper is that unregistered aged care workers be subject to a code of conduct. And so, while there are some professionals working in aged care, health professionals often— doctors , nurses—that are already subject to professional codes of conduct, there are other workers in this area that are not subject to professional codes of conduct. Those are people like assistants in nursing and personal care workers. So we’re suggesting that a code of conduct be made applicable to those workers.

Another reform, or area of reform, that was raised by stakeholders was in relation to restrictive practices. Restrictive practices are practices or interventions that restrict the rights and freedoms of movement of a person with a disability. The primary purpose of using these practices is to protect the person or other people they are around from harm.

MM: Can you give us a few examples of what restrictive practices might include?

VV: Of course. So in aged care, the sorts of things were heard about were people being locked in a room or  ward, either indefinitely or for a limited period of time, physical restraint—so things like clasping or holding  a person’s hands or feet together to restrict their movement,  mechanical  restraint—so we heard about things like  people being tied to beds, tied to chairs to stop them from moving about, and also chemical restraint—like giving people medications, sedative type medications, to calm them down.

MM: Ok. So, well, I imagine sometimes it’s possible restrictive practices might be necessary, but in other times they would obviously amount to abuse. So, what have you heard about this?

VV: That’s right. So we do know that restrictive practices are used in aged care, but what stakeholders were telling us is that there was concern that they are used in some instances as a means of coercion, discipline, convenience or, worryingly, retaliation by staff or others that have been providing support. And often it was in circumstances where there are perhaps staffing ratio issues or other challenges in those environments. But nonetheless, the use of these practices can be abusive at times. We heard that they are most often used on people with an intellectual disability or cognitive impairment who exhibit what has been described as ‘challenging behaviours’ – so, for example, doing things like striking themselves or other people, or going wandering.

So, in that space, what we are proposing is that the use of those practices be regulated through a legislative framework that would apply to residential aged care. We’re suggesting is that restrictive practices only be used when necessary to precent physical harm, and only to the extent necessary to prevent the harm.  We are also proposing that the use of restrictive practices require the approval of an independent decision maker, such as a senior clinician, with statutory authority to make that type of decision, and also that the practice only be used as prescribed in a person’s behaviour management plan.

We are recognising, in making that proposal, that restrictive practices are sometimes necessary. We are not suggesting that they are always necessary, and we are certainly not condoning their use. What we are trying to do is limit and carefully regulate the use of restrictive practices, so that really if it is not necessary to use these practices, the law would prohibit their use.

MM: Right. Thanks for that Vanessa. So I mentioned before the Discussion Paper. That Paper has all of our proposals for law reform. We are now seeking feedback from the community on those proposals. Submissions are due to the ALRC by 27 February 2017. You can find the Discussion Paper online at www.alrc.gov.au. You’ll also find information about how to make a submission. Thanks very much.